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Private Law's Estranged Bedfellows Canadian Journal of Law & Jurisprudence 2020, 1-19 1 © The Author(s) 2020 doi: 10.1017/cjlj.2020.4 Private Law’s Estranged Bedfellows: Why Pashukanis Should Worry Contemporary Formalists Igor Shoikhedbrod The critique of bourgeois jurisprudence ::: must, above all, venture into enemy territory. It should not throw aside the generalisations and abstractions elaborated by bourgeois jurists, whose starting point was the needs of their class and of their times. Rather, by analysing these abstract categories, it should demonstrate their true significance and lay bare the historically limited nature of the legal form.1 The title of this article betrays a seemingly ironic if not altogether improbable thesis—that the legal thought of Evgeny Pashukanis shares important assumptions of the “bourgeois” legal philosophy that it was intended to refute. More specifi- cally, I submit that Pashukanis shares more in common with the neo-Kantian representatives of legal formalism than he or his contemporary advocates and detractors have cared to acknowledge. In what follows, I maintain that the pecu- liar interest in Evgeny Pashukanis among contemporary neo-Kantian legal formalists can be explained by his inadvertent fetishization of private law in general and property law in particular. While at first glance the continuing interest in Pashukanis’s theory presents a promising road for rapprochement between contemporary formalists and Marxists, this road proves illusory and dangerous for all those concerned. Marxists should be wary of endorsing the underlying premises of Pashukanis’s theory while formalists should reconsider what is at stake when they commend Pashukanis’s original account of the legal form but dismiss his forceful critique of formalism. I begin by outlining the history of Pashukanis’s reception in the West and account for his enduring legacy. After showing important and counterintuitive affinities between Pashukanis and contemporary neo-Kantian formalists, I critically examine Arthur Ripstein’s formalist account of private right as interpreted through the normative standpoint of the sui iuris. I argue that Ripstein’s account, while laudatory for its concern with the problem of personal domination, neglects a major wrong that occurs squarely within the ambit of private right, namely the wrong of impersonal class domination. By omitting this wrong, Ripstein falls prey to the most vigorous I wish to thank Chris Arthur, Bill Bowring, Alan Brudner, Hanoch Dagan, Ilija Mondovski, Ben Ohavi, Umut Özsu, Hamish Stewart, Jacob Weinrib, Allen Wood, as well as an anonymous reviewer at the Canadian Journal of Law & Jurisprudence for helpful comments and criticisms on earlier drafts of this article. Igor Shoikhedbrod, Adjunct Professor in the Ethics, Society & Law Program, Trinity College; Postdoctoral Fellow, University of Toronto’s Centre for Ethics. [email protected] 1. Evgeny B Pashukanis, The General Theory of Law and Marxism, translated by Barbara Einhorn (InkLinks, 1978) at 64 [Pashukanis, The General Theory]. The Canadian Journal of Law & Jurisprudence 2020 Downloaded from https://www.cambridge.org/core. Carleton University Library, on 04 Jun 2020 at 01:15:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cjlj.2020.4 2 Shoikhedbrod dimensions of Pashukanis’s critique of formalism—its fetishization of commod- ity exchange and conceptual blindness to class domination. Pashukanis is shown to offer the most serious challenge to contemporary formalism precisely because he questions its coherence while still sharing many of its assumptions. Taken together, the theoretical shortcomings of Pashukanis and his estranged bedfel- lows provide a renewed opportunity for reconsidering the significance of private right, its relation to public right, and the normative challenges that capitalist relations of production and exchange continue to pose for both. I. Pashukanis’s Reception in the West: Between Marxism and Formalism Among the various ill-fated representatives of Soviet legal philosophy, there is one theorist whose name has not only been rehabilitated but consistently revalued in the West: Evgeny Pashukanis.2 How does one account for the continued interest in Pashukanis’s work so many years after he was denounced as a “Trotskyist saboteur” and swiftly executed?3 This question will occupy us for the remainder of the article as we bring into sharper relief Pashukanis’s counter-intuitive affinities with a particular strand of neo-Kantian legal formalism that he sought to discredit. Upon re-reading Pashukanis’s General Theory of Law and Marxism, along with its defenders and detractors in the Marxist tradition, one learns that Pashukanis earned an equally impressive reputation among liberal legal theorists. The earliest and most glowing assessment of Pashukanis’s work came from Lon Fuller, who became the token critic of legal positivism in the twentieth century. It is worth noting that Fuller reviewed Pashukanis’s work alongside his merciless critic and successor, Andrey Vyshinsky.4 In retrospect, any jurist would likely fare better than Vyshinsky on both the scholarly and moral fronts. After all, Vyshinsky was the architect of the forced confession innovation in Soviet law, which was instrumental in establishing the guilt of Joseph Stalin’s political rivals. Under Vyshinsky’s tenure as General Procurator of the USSR, the law became at once an instrument of state terror and a basis by which such terror 2. For an excellent selection of translated writings by prominent Soviet legal philosophers (Stuchka, Pashukanis, Vyshinsky, among others), see John N Hazard, ed, Soviet Legal Philosophy, translated by Hugh Babb (Harvard University Press, 1951). 3. Michael Head, Evgeny Pashukanis: A Critical Reappraisal (Routledge, 2008) at 15. Pashukanis’s reputation must have been so firmly established in Soviet circles that the elusive P Yudin found it necessary to denounce him as a “crafty rascal and enemy of the people”—a charge that would replay itself in the history of Soviet legal philosophy. See P Yudin, “Socialism and Law” in Hazard, supra note 2 at 288. 4. Rehearsing the Stalinist trope of Pashukanis as wrecker, Vyshinsky wrote: “From the stand- point of such an understanding of law as that held by Stuchka and Pashukanis, soviet law was doomed from its very emergence to fade away and to die out. ::: and individual institutes of soviet law, designed to protect, confirm, and develop new socialist relationships were rendered powerless to develop.” Andrey Vyshinsky, “Fundamental Tasks of Soviet Law” in Hazard, supra note 2 at 330-31. Vyshinsky’s remarks above underscore Pashukanis’s unyielding commitment to the withering away of law and also evidence the perils of paying lip service to invocations of socialist legality and rights for the purposes of justifying political terror and repression. Downloaded from https://www.cambridge.org/core. Carleton University Library, on 04 Jun 2020 at 01:15:37, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cjlj.2020.4 Private Law’s Estranged Bedfellows 3 was legitimized.5 Needless to say, Fuller’s positive reappraisal of Pashukanis extended beyond a superficial comparison of Pashukanis’s merits with Vyshinsky’s demerits. Writing in the early years of the Cold War, Fuller derides Vyshinsky’s account of Soviet law for its “vacuity, its abusiveness, and its platitudes”.6 He regards Vyshinsky’s intervention in Soviet jurisprudence as representing the most extreme positivist apologia for the Soviet state, coupled as his work was with a grossly reductionist conception of law as the instrument of the ruling class. In the Soviet context, this ruling class was nominally the working class, whose collective interests were ostensibly represented by the Communist Party of the Soviet Union. Judged from this angle, it makes sense why Fuller sought to counterpose Vyshinsky’s positivist and class instrumentalist orientation with Pashukanis’s original and rigorous treatment of the legal form; the latter view was far more amenable to Fuller’s own. For these reasons, Fuller went further than any of his predecessors in praising Pashukanis in the following terms: Pashukanis expounds with clarity and coherence an ingenious development of Marxist theory that has been called the ‘Commodity Exchange Theory of Law.’ His work is in the best tradition of Marxism. It is the product of thorough scholarship and wide reading ::: it is the kind of book that any open-minded scholar can read with real profit, however little he may be convinced by its main thesis.7 What was it about Pashukanis’s theory that garnered such praise from Fuller? For one thing, it should be noted that Pashukanis was among the few members of the Soviet Commissariat of Justice who possessed specialized legal training. Pashukanis studied law and political economy at the University of Munich, where he earned a doctorate before returning to Russia as a committed Bolshevik.8 In Munich, Pashukanis would have cultivated knowledge of Roman law and grasped the rich tradition of private law that dominated German jurisprudence. In addition to his academic credentials, Pashukanis was an original thinker who revived Marxist jurisprudence from its stagnant and dogmatic slumber, and he did so in the midst of revolutionary upheaval and terror. Unfortunately, Pashukanis’s principled adherence to his theory’s radical conclusions also cost
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